On 12 December 2019, an Iraqi applicant submitted a third subsequent application for asylum after his previous two applications were rejected due to a lack of credibility. The applicant provided new elements, alleging that he participated in demonstrations in Belgium opposing the political parties governing his home country, that he had psychological problems for which we would face discrimination in Iraq, as well as the claim that he was homosexual and in a relationship with a transgender woman. However, on 4 March 2021, the Commissioner General for Refugees and Stateless Persons, once again rejected the application citing a lack of credibility. The applicant filed an appeal with the Council for Aliens Law Litigation (CALL), and on 9 September 2021, the CALL ordered the Commissioner to reevaluate the case by allowing the applicant another hearing to provide further details on his homosexuality. This interview took place on 28 February 2023. The Commissioner found that the applicant failed to substantiate his sexual orientation, and on 19 July 2023, rejected his application. The applicant once again filed an appeal before the CALL.

The CALL considered that the grounds cited by the Commissioner to reject the applicant’s sexual orientation were insufficient and based on subjective assessments of all statements and documents submitted by the applicant. The CALL noted that the documents submitted by the applicant, including 12 videos of his life with his partner in Belgium, contained serious indications that his claim was credible. The CALL moreover ruled that even though the applicant did not claim to have been a victim of persecution in Iraq on the basis of his sexual orientation, it  was nevertheless necessary to consult country information to assess whether the applicant had a well-founded fear of persecution. Concerning the criminalisation of homosexuality, CALL referred to the judgment of 7 November 2013 of the CJEU in X, Y, and Z v Minister voor Immigratie en Asiel (joined cases C-199/12, C-200/12, C-201/12) and Articles 9 and 15 of the recast Qualification Directive. The CALL found that homosexuality is criminalised in Iraq, and a hostile social and political climate towards members of the LGBTQIA+ community characterises the situation for homosexuals in Iraq, which has resulted in actual persecutions of persons falling within this group.  

In light of the above, the CALL ruled that the violence described against LGBTQIA+ persons constitute acts of persecution. Secondly, the CALL found that, any person who claims to belong to the LGBTQIA+ community in Iraq may have a well-founded fear of being persecuted solely because of their membership in that community, without the necessity to establish an individual risk upon return to Iraq. Finally, CALL noted that in view of the involvement of law enforcement and religious, political or traditional leaders in the discrimination and violence perpetrated, LGBTQIA+ persons and victims of homophobic mistreatment, cannot reasonably rely on the protection of Iraqi authorities.

The CALL furthermore considered that the applicant should not be required to conceal his sexual orientation, which is a fundamental characteristic of human identity. Thus, CALL granted refugee status to the applicant due to a well-founded fear of persecution on the grounds of membership of a particular social group of homosexual persons in Iraq.